CYIL 2015

THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … energy was in its infancy, and there was little concern about activities at the back end of the fuel cycle. 41 On the other hand, the Vienna Convention includes any “facility where nuclear material is stored, other than storage incidental to the carriage of such material” 42 under the scope of the liability regime. Because the definition of “nuclear material” 43 also covers radioactive products and waste, 44 the Convention has sometimes been interpreted as applying to installations for the storage of radioactive waste without any further precision. However, a study presented during the negotiation of the Amended Vienna Convention made it clear that the issue needed more consideration. 45 It is a matter of fact that the Convention is silent regarding what “storage” means. Facilities serving for temporary storage of nuclear materials (in particular interim storage facilities for spent nuclear fuel) are certainly covered by the liability régime created by the Convention. However, the Convention does not directly address those facilities ( repositories ) serving for final disposal of nuclear materials, in particular for final disposal of radioactive waste. In this respect, it may be interesting to add that, pursuant to the 1984 Decision of the NEA 46 Steering Committee, radioactive waste disposal facilities are to be considered as “nuclear installations” within the meaning of the Paris Convention 47 during their pre-closure phase only. Therefore, within the meaning of the Paris Convention, each disposal facility must have an operator liable with financial coverage of his liability. The question raised at this stage is to determine who in this system must ensure that there will be effective and continuous presence of an operator liable. 48 Here the Paris Convention provides for no explicit answer 41 See MONTJOIE, M. Droit international et gestion des d échets radioactifs, Paris : L.G.D.J., at p. 273. 42 Where nuclear materials are stored only as an incidental part of their carriage – for example, on a railway station platform – the facilities used for such storage will normally not be deemed to come within the definition of nuclear installation because of the transitory and fortuitous nature of the storage. 43 “Nuclear material” means nuclear fuel, other than natural uranium and depleted uranium, capable of producing energy by a self-sustaining chain process of nuclear fission outside a nuclear reactor, either alone or in combination with some other material; and radioactive products or waste (Art. I, Par. 1 letter /h/). 44 “Radioactive products or waste” means „any radioactive material produced in, or any material made radioactive by exposure to the radiation incidental to, the production or utilization of nuclear fuel, but does not include radioisotopes which have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial or industrial purpose.“ (Art. I, Par. 1 letter /g/). 45 See IAEA (ed.): The 1997 Vienna Convention on Civil Liability for Nuclear Damage and 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, Vienna: IAEA, 2007, at p. 26. 46 OECD Nuclear Energy Agency. 47 The Paris Convention covers also those “facilities for the storage of nuclear substances other than storage incidental to the carriage of such substances; and such other installations in which there are nuclear fuel or radioactive products or waste (emphasis added) as the Steering Committee for Nuclear Energy of the Organisation shall from time to time determine.” 48 See OECD (ed.): Problems raised by the application of the Convention nuclear third party liability to radioactive waste repositories, Nuclear Law Bulletin, 1995, pp. 17-27.

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